Kevin Wagner, The Civics Project Published 11:59 a.m. ET July 10, 2020

Question: The recent U.S. Supreme Court decision on state funding for religious schools confuses me. What does the Constitution actually say about religion?

Answer: The U.S. Constitution does not say much directly. Article 6: Clause 3 states that No religious test shall ever be required as a qualification to any office or public trust under the United States.

Religion is mentioned again in the First Amendment, where we find many of the rights that we defend and debate today. The First Amendment restricts government from infringing on speech, the press, petitioning government for redress, and peaceable assembly. Those freedoms and the limitations on them are the subject of a great deal of debate and case law.

The First Amendment also speaks to two distinct issues regarding religion. First, it protects the free exercise of religion, and second it prohibits the government from establishing a religion. The second provision, often referred to as the Establishment Clause, is the basis for the concept of the separation of church and state. Courts have historically used this clause to prohibit government from favoring a particular religion, or any religion.

Kevin Wagner(Photo: Palm Beach Post)

The idea of keeping the government apart from religion has its roots in the founding. It was popularized in a letter from Thomas Jefferson to the Baptist Association of Danbury, Conn., in 1802. Jefferson wrote in part that prohibiting the state from establishing a religion would result in [b]uilding a wall of separation between Church & State.

The U.S. Supreme Court has endorsed Jeffersons wall approach to the interpretation of the Establishment Clause. In Everson v. Board of Education (1947), Justice Hugo L. Black wrote that the First Amendment was intended to erect a wall of separation between Church and State. The nations high court also recommended that the wall should be kept high and impregnable, while cautioning against even the slightest breach.

In the abstract, that can seem pretty easy, but it is not. Religious people and institutions regularly interact with government and society. What breaches the wall and what does not can be confusing. In Lemon v. Kurtzman (1971), the Supreme Court created a test to help, which requires a valid law to have a secular (non-religious) purpose, neither advance or inhibit religion, and avoid excessive government entanglement with religion. What constitutes excessive entanglement has proven hard to define, and courts have been somewhat inconsistent in their interpretations.

While the Lemon Test has proven surprisingly durable, it has been subject to significant criticism. Many current jurists, including a number of U.S. Supreme Court justices, do not favor the test or the separation doctrine. Opponents argue that Jeffersons letter is being given too much weight and significance. Opponents have also argued that the wall metaphor is an overly broad interpretation of the Establishment Clause.

The current Supreme Court has favored a more expansive reading of the Free Exercise Clause, often at the expense of the Establishment Clause. This has resulted in rulings requiring religious exemptions for generally applicable laws and regulations in areas such as healthcare and education. Concerns about the Establishment Clause have been pushed to a more subordinate position.

Kevin Wagner is a noted constitutional scholar, and political science professor at Florida Atlantic University. The answers provided do not represent the views of the university.

The professor wants to hear from you. Keep in mind that no question is too basic; but it can be too partisan. So if you have a question about how American government and politics works, send us an email at rchristie@pbpost.com.

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The Civics Project: Constitutional wall between church and state forever being tested | Opinion - Florida Today